Vundla v Masombuka (A245/2017) [2017] ZAGPPHC 207 (15 May 2017)

IN

THE HIGH COURT OF

SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case No: A245/2017

HIGH COURT REF. NO.: 328/16

MAGISTRATE'S CASE NO.: SH85/14

MAGISTRATE'S SERIAL NO.: 01/16

DATE: 15 May 2017

THE

STATE

And

PHINDILE

MARIA MASOMBUKA

REVIEW

JUDGMENT

MABUSEJ:

[1] This matter came before me as a special review in terms of s 304(4) of the Criminal Procedure Act 51 of 1977 ("the CPA").

At the heart of this review is the sentence that the court a quo imposed on the accused.

[2] The accused is an adult female of the farm Witfontein, In the district of Bronkhorstspruit in the Province of Gauteng. She appeared

before a regional court magistrate at Bronkhorstspruit where she was charged with two counts. Firstly, she was charged with murder in court 1 read subject to the provisions of s 51(2) of the Criminal Law Amendment Act No. 105 of 1997 ("the Minimum Sentence Act"). According to the State, the said offence was committed on or about 17 to 18 February 2014 at or near Babsfontein Road and Witfontein Road, Bronkhorstspruit when she unlawfully and intentionally killed a new-born baby named S. M. by means of asphyxia. In count 2, which was committed on the same date and place as count 1, she was charged with concealment of birth in contravention of s 113(1) read with 113(2) and (3) of the General Laws Amendment Act 46 of 1935.

[3] Despite her plea of not guilty to both counts the accused was convicted accordingly and upon conviction sentenced as follows:

"The accused is sentenced in terms of s 276(1)(i) Act 5111977 to ten years imprisonment In terms of s 103 G Act 60 of 2000 the accused is found to be unfit to possess a firearm. In terms of s 120(4)(A) Act 38 of 2005 is found to be unsuitable to work with children."

[4] The regional court magistrate then sent the record for review to the registrar of this Court in terms of s 304(4) of the CPA. In

the covering letter that accompanied this record, the magistrate had stated that:

''... it came to my attention that the sentence imposed on her was not a competent sentence. My Intention was to sentence her to ten (10) years imprisonment."

[5] Upon receipt of the record, I noticed that it was incomplete. I sent it back under cover of my letter dated 25 November 2016 and

requested the clerk of the court to send me a complete record. The complete record was only received by my office on 20 February 2017. On 3 March 2017 I forwarded the whole record to the office of the Director of Public Prosecutions and requested that office to comment on the sentence. In that office the matter was handled by Mr. C Pruls, the State Advocate with Mr. GD Baloyi, the deputy director of Public Prosecutions Gauteng Division, Pretoria. They furnished me with their erudite comments on the matter. I am therefore indebted to them for their invaluable comments.

[6] The following are their observations:

6.1 the accused was convicted of one count of murder and another count of concealment of birth.

The record on the other hand shows that: "The accused pleads not guilty to count 3."

At the same time the accused's legal representative told the court a quo that "the plea of not guilty in respect of the two charges is In accordance with my instructions•. The charge sheet also shows that the accused was charged only with two counts. It is accordingly unclear as to why the record shows that: "the accused pleads not guilty to count 3.”

[7] The major problem that bedevilled the sentence that the court a quo imposed on the accused is, firstly, that the magistrate has failed to indicate whether or not the two counts were taken together for the purposes of sentence. Secondly, there is no clarity as to the count on which the court a quo imposed the aforesaid sentence of ten years. Accordingly, the sentence imposed by the court a quo on the accused is not competent.

[8] The sentence that the court a quo imposed on the accused ought to be set aside, the matter sent back to the clerk of the court so that the magistrate should impose sentence afresh on the accused. Accordingly, the following order is made.

1. The sentence of ten years imprisonment imposed by the court a quo on the accused is hereby set aside.

2. The matter is hereby referred back to the Clerk of the Criminal Court so that the magistrate must impose sentence on the accused afresh.

____

P. M. MABUSE

JUDGE

OF THE HIGH COURT

I agree,

N.

RANCHOD